For 27 years, Barry Jarrett has worked his way up the Milledgeville city employment ladder, through water and sewer all the way to city manager. As manager, Jarrett has served for several years during tough times for Milledgeville when some major local employers were closing, including correctional facilities, Rheem, Shaw, and Central State Hospital. Jarrett is now the highest-ranking African-American employee in a city that is financially stronger than its county, in part due to Jarrett’s stewardship.

Jarrett got a jolt on February 16, 2015, though, when ethics expert Patrick E. Longan, appointed by city council as a special master to apply Milledgeville’s ethics code, unexpectedly recommended that Jarrett be fired.

Longan had earlier been asked to recuse himself from the role of special master in this matter because Longan was expected to rubber-stamp Jarrett’s 2014 decision, recommended by five of six city council members (Walter Reynolds abstaining), to shop for better rates and strip $5 million of $33 million total that the city had parked with Century Bank & Trust. Longan surprised just about everyone by instead calling for council to fire Jarrett.

Daniel’s Disgust, and Some Fallout

Back on January 22, 2014, Chat Daniel, the bank’s president, had written a letter to the editor of the local paper, the Union Recorder, to complain that Daniel was “completely disgusted” with city council for resisting a referendum of the voters on unification of Milledgeville with Baldwin County. On March 13, 2014, less than two months later, Jarrett caused $5 million in funds held in Century Bank to be placed with other banks.

Although Longan found that Jarrett’s decision increased the city’s financial returns at all times since the move, Longan chastised Jarrett, assuming that Jarrett was conscious that the move was for improper purposes. One improper motive, wrote Longan, was for the councilors to want to move funds out of a bank in retaliation for the bank’s president exercising free speech rights.

A related problem, Longan reasoned, was Jarrett succumbing to the will of the councilors. Even though Longan believed that most of the councilors’ motives were retaliatory and improper, the councilors were also supposed to be insulated from operational decisions about where money was to be placed. Longan faulted Jarrett for not resisting council more mightily, even though the councilors could fire Jarrett.

The Secret Recording: “What’s Wrong with Retaliation?”

Councilor Reynolds on March 3, 2014, had secretly taped an informal meeting of Jarrett, the councilors and council’s lawyer, Jimmy Jordan. The transcript shows Reynolds himself raising with Jarrett the question of whether moving any funds from Century Bank would be, in Reynolds’ word, “retaliation.”

Jarrett responded by asking, “What’s wrong with retaliation? It’s the way you do business.” After Jarrett analogized the movement of funds to moving one’s car business from one dealer to another if you don’t like the dealer, councilor Denese Shinholster joined in by saying that “Yes we do” have a “right to do that,” and later mentioned arguably retaliatory federal and state decisions to shut governmental facilities in local communities, like Central State Hospital and Air Force bases. Council’s lawyer, Jordan, never interjected to explain what the law on retaliation might actually be, possibly giving Jarrett more reason to think that pulling funds from Century Bank could be lawful.

Based on Jarrett’s defense of retaliation in some circumstances, and letters that Jarrett had earlier drafted for the councilors to express their support for moving the funds, Longan found that Jarrett improperly succumbed to improper pressure from four of six city councilors, and knew that he was wrong in doing so. Jarrett continued to defend his actions in a January 2015 hearing before Longan, to the point that Longan faulted Jarrett for failing to “show remorse.”

When is Retaliation Unlawful?

So when is retaliation for a governmental contractor’s speech unlawful? Under a 1996 U.S. Supreme Court precedent, Board of County Commissioners v. Umbehr, Century Bank or Daniel might have a claim for retaliatory loss of a governmental contract if either or both could show that they were punished for their First-Amendment-protected speech. They would then have to show that their contribution to public discussion, in this case about city council’s role in consolidation, outweighed the government’s interests, in this case, to get better service and rates on the city’s financial investments.

However, Daniel’s letter to the editor did not mention Century Bank, raising doubt about whether the bank would itself have had standing to sue for an employee’s letter to the editor on a non-financial topic.

Daniel might have been able to sue in his personal capacity, but only if he suffered personal injury. Daniel remains president of the bank, and no evidence suggests that he has suffered a pay cut.

If Century Bank itself were granted standing to sue, any damages would probably be limited to the value of its profit expectancy since losing the account. Ironically, the higher the profit loss claimed by the bank in a potential suit, the greater the likelihood would be that the government’s interests in getting better service and returns would outweigh the value of any contribution by the bank or Daniel to public discussion about a topic of general interest.

The Supreme Court has described the prime purpose of its governmental contractor and employee anti-retaliation doctrine as being to protect governmental contractors and employees who may have the best information about dysfunctional aspects of government, freeing such well-placed contractors and employees in their public statements to reveal what they intimately know about governmental dysfunction.

Such concerns seem missing here, because the substance of Daniel’s letter focused on a fully public consolidation referendum question, not financial dealings of the city.

Neither Daniel nor Century Bank has subsequently sued for deprivation of any First Amendment rights, further raising doubt about whether the presence of some retaliatory reason for the switch in funding was obviously unlawful. Although Reynolds claims now to be vindicating Daniel’s rights against retaliation, Reynolds would have no legal standing to do so in court.

In short, there were various reasons to doubt that either Jarrett’s or the councilors’ possible motives in seeking retaliation against Daniel were unlawful.

Longan also ruled that moving the funds was not in the “general welfare” of Milledgeville. Usually, questions of the general welfare are not for courts to decide, but for the people’s representatives, so long as they do not, in essence, self-deal. There was no indication of self-dealing in this case by Jarrett or any councilor.

Too harsh?

Even if the councilors’ motives were wrongful, City Councilor Richard “Boo” Mullins, Jr., said that it was inappropriate in his view for Longan to recommend that council “penalize Jarrett for just doing his job” of getting better returns and simultaneously satisfying five of his six bosses. Even Reynolds, the secret taper, did not oppose the transfer of funds, characterizing his own position as being to “abstain.”

Sources indicated that some are encouraging Jarrett to retire without a fight. In June, 2014, Milledgeville’s then-mayor Richard Bentley had already called for Jarrett’s termination, in light of the shifting of funds away from Century Bank. However, council was not obliged to follow Bentley’s recommendation then, and is not obliged to follow Longan’s recommendation now. Bentley himself has since resigned, in part because of allegations that he engaged in insurance fraud in his private business.

Council’s decision to postpone action puts Jarrett in the awkward position of having to decide by March 18 whether to appeal, retire or simply rely on at least three councilors to resist Longan’s recommendation, just as they resisted Bentley’s recommendation.

Later, the larger question: Should Milledgeville and Baldwin County Unify? Comparing the Cases of Macon and Milledgeville, Bibb and Baldwin